Admin Law – Brookins

discern the drafter's (i.e. congress) intent

clear and unambiguous provisions and ambiguous provisions

1. Read the statute
2. Look at immediate context
3. Parol evidence (i.e. legislative history, past practice, interpretive cannons)

A statute must have an intelligible principle of guidance. If not, it is unconstitutional, and an agency cannot cure that defect with a proper interpretation as that will be legislation. Agencies have permitted scope of discretion within Congressional conferred scope of power (i.e. Enabling Act). The Supreme Court defines requisite to fit into the Agency's allowed perimeters set by precedent.

Nonjudicial entities (i.e. administrative courts) can hear Article III and state issues if you affirmatively waive your right before them (i.e. purposeful availment). Article III does not confer on litigants an absolute right to plenary consideration. Factors considered for an Article III challenge include: (1) the extent to which the "essential attributes of judicial power" are reserved to Article III courts, (2) the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested in non-Article III courts, (3) the origins and important of the right adjudicated, and (4) the concerns that drove Congress to depart from the requirements of Article III.

When the attorney general hires a special counsel, that special counsel is an inferior officer (i.e. subject to removal by higher officer & scope of duties and jurisdiction are limited) under Article II. Therefore, they are not subject to the president's authority to terminate, but only by the attorney general for just cause.

In local settings, cities, counties etc when making a law that adversely impacts the interests of the local community, they have a right to be put on notice (constructive or actual) with a reasonable opportunity to respond (comment period) and without this, violates Due Process.

The Due Process Clause requires that the government give an individual notice and an opportunity to be heard before depriving that individual of his life, liberty, or property. Yet, where an agency order applies to a large number of people, the Due Process Clause does not require that each person have an opportunity to be heard regarding the order's adoption because it would be impracticable that everyone should have a direct voice in its adoption.

The APA contains specific provisions governing rulemaking, which it defines as "an agency statement of general or particularly applicability and future effect." The Act requires: (1) publication in the Federal Register of notice of proposed rulemaking and of hearing; (2) opportunity to be heard; (3) a statement in the rule of its basis and purposes; and (4) publication in the Federal Register of the rule as adopted. The rulemaking provisions of the APA were designed to assure fairness and mature consideration of rules of general application (repetitiveness). They may not be avoided by the process of making rules during adjudicatory proceedings. There is no warrant in law for the Board to replace the statutory scheme (admin proceeding) with a rule-making procedure of its own invention.

The agency's rule making authority allows them to overrule the express language in the enabling act for the sake of operational efficiency.

Agencies may adopt new standards through individual orders based on an adjudication of a particular situation, in addition to issuing prospective rules. Agencies can make new rules prospectively through rulemaking, the preferred method of establishing standards of conduct. The choice between proceeding by general rule or by individualized "ad hoc" litigation is one that lies primarily in the informed discretion (i.e. expert judgment) of the administrative agency.

An administrative agency is not precluded from announcing new principles in the adjudicative proceeding and the choice between rulemaking and adjudication lies within the agency's discretion. However, there may be situations where the agency's reliance on adjudication would amount to an abuse of discretion.

An administrative agency must proceed by rulemaking if the matter being adjudicated changes existing law (past practices) and has widespread application.

[Brookins: Third Step to Chevron] If there is a statute from Congress (i.e. a manifested clear intent) that is enacted before, during, or after an enabling, it can modify the enabling act of the agency.

If an enabling act has language, don't turn to the APA to interpret it. Congress gave more specific attention to hearings than the enabling act than the APA so the specific attention in the enabling act governs.

APA § 553, 556, & 557 govern agency rulemaking. When a statute requires that rules be made on the record after an opportunity to be heard, APA §§556-57 govern. When a statute requires a hearing prior to rulemaking but doesn't require the rule to be made on the record, § 553 applies. The APA does not expressly define hearing, but it is clear from the statute's "after hearing" language does not necessarily give interested parties the right to present evidence, examine witnesses, or present oral argument to the agency decisionmaker.

The APA requirements are the maximum the courts can impose on an agency, but the APA is the statutory minimum an agency can employ. Agencies can impose requirements above and beyond that of the APA and unless it substantially, procedurally, or substantively violates rights, the courts cannot overturn the agency's decision.

A final rule that differs from a proposed rule must be logical outgrowth of a proposed rule. Draft permit must reasonably inform interested parties of final rule. New round of notice and comment must be sufficiently clear to afford interested parties an opportunity to other informed comments. Court reviews adequacy of agency's notice and comment procedure without deferring to agency's opinion of such adequacy. Agency's decision that made pursuant to inadequate notice and comment is arbitrary or an abuse of discretion.

An agency rule is subject to the APA's notice and comment requirements if it has the full force of law. The disputed rule has "force of law" only if Congress has delegated legislative power and if the agency intended to exercise that power. (1) Intent can be found where, in the absence of a legislative rule, the legislative basis for agency enforcement would be inadequate. Agency creation of a duty is a necessary predicate to any enforcement for failure to keep records. (2) An agency likely intended a rule to be legislative if it has published the rule in the CFR. (3) If a second rule repudiates or is irreconcilable with prior legislative rule, the second rule must be an amendment of the first and (4) an amendment to a legislative rule must itself be legislative.

Under Chevron deference, courts must defer to a federal agency's reasonable interpretation of a statutory public hearing requirement in the absence of a clear expression of congressional intent. Chevron only applies to an enabling act. Courts will look to the APA when enabling act is silent.

Courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA. At most, a court can ensure that an agency action is not arbitrary and capricious or otherwise contrary to law by imposing a general procedural requirement of sorts by mandating that an agency take whatever steps it needs to provide an explanation that will enable the court to evaluate the agency's rationale at the time of the decision. Failure to consider all potentially relevant areas of law does not render a decision arbitrary and capricious. A decision on arbitrary and capriciousness doesn't necessarily mean reasonableness.

The court exercised plenary review of the agency's compliance with the APA. The APA requires only that the agency provide a hearing before a neutral decisionmaker and allow each party an opportunity "to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts." The court may not impose requirements above and beyond mandated by the APA. There is simply no principled way that the court can say that the difference occasioned by replacing traditional discovery methods with mandatory disclosure is such that citizen-intervenors are left with no means of adequately presenting their case. Nor do the new rules extirpate (i.e. eliminate, rootout, destroy completely) cross-examination; they simply restrict its use to situations in which it is "necessary to ensure an adequate record for decision." When an agency provides a plausible interpretation of its own procedural rules and there is no record or pattern of contrary conduct a court has no right either to slough off that interpretation or to deem it disingenuous.

Judicially devised prudential standing requirements are inapplicable to an administrative agency acting within the jurisdiction Congress assigned to it. Administrative standing depends on the agency's interpretation of whether Congress intended the applicable standing statute to protect the interest asserted.

Otherwise inadmissible evidence under the FRE's, such as hearsay evidence, may constitute substantial evidence. Substantial evidence is a standard of proof used for judicial review, but not in an adjudicatory proceeding. Substantial evidence means more than a mere scintilla; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

When a state seeks to terminate welfare benefits, procedural due process requires the state to provide the recipient with a pre-termination evidentiary hearing for the purpose of determining the validity of discontinuing public assistance in order to protect the recipient against an erroneous termination of his benefits.

The court has fully and finally rejected the wooden distinction between rights and privileges that once seemed to govern the applicability of procedural due process rights. The property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money. The Court has required due process protection for deprivations of liberty beyond the sort of formal constraints imposed by the criminal process. The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must have a legitimate claim of entitlement.

In accordance with the Roth standard for property interest, a person's interest in a benefit is a property interest for due process purposes if there are such rules or mutually explicit understandings (i.e. past practices) that support his claim of entitlement to the benefit and that he may invoke at a hearing. Proof of such a property interest would not entitle him to reinstatement, but such proof would obligate a hearing at his request where he could be informed of the grounds for his nonretention and challenge their sufficiency.

Defamation is a state created claim. The state has developed the rules and creates the judicial procedures/forums for that particular claim to be tried. To allow him to make this action a federal claim under due process, could effectively turn this due process claims into a tort. His avenue of redress is state defamation claim. He has no right because there is a preexisting state process for this type of claim. If a state creates it, state has procedures, don't look to Due Process.

A prison disciplinary procedure that does not impose an atypical and significant hardship in relation to the ordinary incidents of prison life does not violate an inmate's due process rights.

Due process is not a technical conception with a fixed content unrelated to time, place, and circumstances. Due process is flexible and calls for such procedural protections as the situation demands. Whether an administrative procedure meets the constitutional guarantees of the Due Process Clause requires a consideration of three factors: (1) the private interest at stake in the administrative action; (2) the risk of an erroneous deprivation of this interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

There is a presumption of objective decisionmaker, even when the same body investigates and levels the charges. Actual bias must be proved.

An agency official may be disqualified from hearing a matter if he makes comments indicating or giving the appearance that he has prejudged the matter.

When a reviewing an agency decision, the Administrative Procedure Act (APA) requires courts to consider: (1) whether the agency acted within the scope of its authority; (2) whether the agency's actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (3) whether the agency's action met the necessary procedural requirements. To determine prong (2) the court must analyze whether the agency's decision was based on a consideration of all the relevant factors and whether there has been a clear error of judgment.

The APA does not give courts the authority to enter general orders compelling agencies to comply with broad statutory mandates. The action that you are identifying needs to be (1) an agency action and (2) a discreet action. Discreet means isolated somewhere in the statute; explicit or clearly implied.

Congress can draft a statute that is so broad that it becomes judicially unreviewable. Congress intended to leave employment decisions to the director, so no standard for court to review decisions. When Congress intends to preclude review of constitutional claims, its intent to do so must be clear.

Under Article III, a party does not have standing to litigate a generalized grievance against the government in federal court if she suffered no personal injury other than the harm suffered by all citizens. Requirements for standing: (1) injury in fact, (2) casual connection, and (3) likely that the injury will be redressed by a favorable decision.

for an agency action to be final, it must both (1) mark the consummation of the agency's decisionmaking process; and (2) determine rights or obligations or otherwise create legal consequences

fitness requires an issue to be legal in nature, final agency action and have direct or immediate harm in order to be ripe for review

relates to whether a final agency action is ready for review and depends on whether the agency action is fit for review as well as on the level of hardship that the plaintiff will suffer if review is postponed. (i.e. review of a rule before an agency has enforced it)

requires a litigant to invoke an agency's own internal remedies for correcting errors before seeking judicial review. Commonly requirements are in agency enabling acts.

Injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determination unless these arise in the context of a controversy "ripe" for judicial resolution.

Rationale: (1) judicial interference, (2) agencies from judicial interference and (3) protect companies from the burdens of these decisions before the agency enforces them

Fitness for the issue itself to be ripe requires: (1) legal in nature (i.e. question of law); (2) final agency action (i.e. An agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy); and (3) Plaintiff's direct or immediate harm (i.e. Direct or immediate equitable injury cognizable by a court of equity by complying)

Once fitness is proved access to courts must be permitted absent a statutory bar or some other unusual circumstances.

This Court long has acknowledged the general rule that parties exhaust prescribed administrative remedies before seeking relief from the federal courts. Exhaustion is required because it serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency.

A court should defer to an agency's findings of fact if they're supported by substantial evidence on the record considered as a whole. Substantial evidence is more than a mere scintilla; such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. It must do more than create a suspicion of the existence of the fact to be established... it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.

Courts must abide by the Board's derivative inferences, if drawn from not discredited testimony, unless those inferences are irrational, tenuous, or unwarranted.

The agency has failed to offer the rational connection between facts and judgement required to pass muster under the arbitrary and capricious standard.

Court will defer to the Administrators case by case basis and can fill gaps in the enabling act with an agreement between the agency and whoever is challenging the decision.

Chevron Two-Step: degree of deference to give to an agency when interpreting its enabling act; (1) If the enabling act is clear and unambiguous, the agency must comply, and the courts must comply. No contention. (2) If it is ambiguous, the court must accept the agency's decision unless it is discriminatory, arbitrary/capricious or contrary to the law (i.e. Constitution/Due Process).

Memorandum's of interpretation do not have Chevron acceptability. Only formal hearings and rulemaking are subject to Chevron deference.